Delhi District Court
St vs Mohd. Sultan Etc., Fir No. 86/07 Ps New ... on 16 February, 2010
1
ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
IN THE COURT OF SH. B.S. CHUMBAK, ADDL. SESSIONS JUDGE-3
NE/KKD:DELHI
Case ID Number 02402R0452812007
Sessions Case No. 107/08
Assigned to Sessions 02/06/04
Arguments heard on 10/02/10
FIR NO. 86/07
Police station New Usman Pur
Under Section 302/404/411 IPC
Date of order 16/2/2010
Out come of the case Acquitted
STATE VS. 1. MOHD. SULTAN @ GUDDU
S/O SH. ABDUL KALAM
R/O MAKAN OF OMWATI GALI
KHAJUR WALI, VILLAGE
GHONDA,DELHI
PERMANENT ADDRESS: 1464
MALLAH KATRA KALA MEHAL
JAMA MASJID DELHI.
2. SHAMIMS/O MOHD. SHAFIQ
S/O MOHD. HABIB R/O JHUGGI
NO. E-13A/222 KABARI MARKET,
SEELAM PUR DELHI.
PR : Ms. Neelam Narang, Ld. Addl. PP for the state.
Sh.Y.P Pundir Amicus Curiae for accused Mohd.
Sultan @ Guddu.
Sh. Abdul Rauf Advocate for accused Shamim @ Shafiq.
JUDGMENT
1. On 10.3.07 a case u/s 302 IPC was registered at PS New Usman Pur vide FIR No. 86/07 on the basis of an information received that a dead 1 2 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC body of a male lying at Zero Pusta main road in front of Engineering college vide DD No. 3B.
2. Brief facts arising out of this case are that on receipt of aforesaid information SI Dal Chand along with Const. Manvir reached at the spot. Inspector Dinesh Sharma was informed who along with Const. Gianender also reached at the spot i.e Zero Pusta main road in front of Engineering college. On reaching there they saw a dead body of a male aged about 35-36 years wearing pant & shirt. On enquiry the name of the deceased was revealed as Brij Mohan s/o Mahvir Pd.,r/o Peerwali Gali Ghonda (house of Kallu Gujjar). A paper slip was found in the pocket of deceased bearing the address of Girish Auto House, 72, P.S Jain Motor Market Kashmiri Gate. Blood was noticed near the body of the deceased. A blood stained piece of stone was also lying there. A white colour steel chain was also found lying at the spot. Crime team and photographer were called, photographs of spot were taken. Case u/sec. 302 IPC was got registered. A visiting card bearing the phone number of one Haseen was also recovered from the possession of the deceased. Haseen s/o Tehsin Mehboob r/o R-247, Gali No. 20 Braham 2 3 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Puri Delhi was also called. The deceased was got identified by him. Site plan prepared, blood stained piece of stone, blood stone earth were also lifted from the spot and sealed with the seal of DS. Postmortem of the dead body was got conducted at GTB hospital. Clothes worn by the deceased were taken into possession and sealed. Blood Gauge and viscera were taken into possession.
3. Investigations were initiated and during the course investigation one Sudhir s/o Harbans Mishra disclosed that on 9.3.07 between 9p.m to 11 p.m deceased Brij Mohan (rickshaw puller) and his neighbourer Mohd. Sultan @ Guddu were taking liquor while sitting in his rickshaw parking. Mohd. Sultan @ Guddu was also seen siting in a rickshaw and deceased was pulling the rickshaw after taking liquor. Sunita w/o Ram Prakash also testified that she had seen Sultan and deceased Brij Mohan (deceased) taking liquor in the rickshaw parking of Sudhir Mishra till late night. Smt. Laxmi w/o Brij Mohan was also interrogated and she also stated that wife of her Jeth Raju died about 15/16 years ago and his Jeth Raju was having illicit relations with one Rashida Begum. Husband of Rashida namely Abdul Kalam had been long inning in jail in case of 3 4 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC murder. Mohd. Sultan @ Guddu (accused) is son of Rashida and he was having evil will against the deceased on account of having illicit relations with his mother. She also stated that on 8.3.2007 she heard that Sultan @ Guddu had some altercation with her husband Brij Mohan at the house of Raju.
4. It is further investigated that on 15.3.07 an information vide DD No. 61D from P.S New Usman Pur was received wherein it was informed that accused Mohd. Sultan @Guddu and Shamim s/o Habib have been arrested by DIU N/E and they both were allegedly involved/as confessed by them, in the present case. On receipt on this information Inspector Dinesh Sharma arrested both the accused from the court of Sh. Sanjeev Kumar M.M after seeking permission. During further investigation accused Mohd. Sultan disclosed that he can get recovered the blood stained clothes worn by him at the time of commission of offence from his residential house belonging to one Om Wati, Gali Gujjarwali village Ghonda and accordingly blood stained clothes were recovered from a roof of tin of a room in front of his house. Accused Shamim also disclosed that Mohd. Sultan @ Guddu handed over a cycle rickshaw to 4 5 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC him on last Friday and in lieu of that he paid Rs.400/- to him. He further stated that he can get recovered the said rickshaw from his shop B- 13A/222, Kabari Market Seelam Pur and accordingly at his instance cycle rickshaw was recovered from his shop. Rickshaw was also got identified by Saleem /owner of the rickshaw and he also stated that he had given the said rickshaw on rent to Brij Mohan/deceased. Cause of death was obtained wherein it is opined that "Cause of death is shock due to antemortem head injury produced by heavy cutting weapon and blunt force impact."
5. All the exhibits were sent to office of CFSL Kolkotta, statement of witnesses were recorded and after completion of investigation, challan u/sec. 173 Cr.P.C was presented against accused Mohd. Sultan @Guddu and supplementary challan against accused Shafiq @ Shamim s/o Habib was presented to the court of Ld.MM.
6. Ld. MM after taking cognizance of the offence against the accused persons supplied the copies of the challan as required u/sec. 207 Cr.P.C to both the accused persons and committed the case to the court of 5 6 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Sessions and on turn allocated to the court for trial, thereafter case was fixed for arguments on charge.
7. After hearing the arguments and on perusal of the material placed on record a charge for the offence u/sec. 302 r/w 404 IPC was famed against the accused Mohd. Sultan and charge for the offence u/sec. 411 IPC was framed against accused Shafiq @ Shamim to which they pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
8. ASI Anuradha was examined as (PW.1), Ct. Jafruddin as (PW2), Sh. Sushil Jain as (PW.3), Smt. Laxmi(wife of the deceased) as (PW.4), Sh. Raju( brother of the deceased) as (PW.5), Smt. Sunita as (PW.6), Sh. Krishna Mani Pandey as (PW.7), ASI Amrit Lal as (PW.8), Ct. Bachchu Singh as (PW.9), Mohd. Saleem as (PW.10), Sh. Haseen as (PW.11), SIE.S Yadav as (PW.12), Ct. Gianender as (PW.13), Sh.Sudhir Kumar Mishra as (PW.14), H.C Mahender as (PW.15), Const. Manbir Singh as (PW.16), Ct.Raj Pal Singh as (PW.17), Ct. Vijender as (PW.18), H.C Jasbir Singh as (PW.19), H.C Nepal Singh as (PW.20), SI Dal Chand as (PW.21), Dr. Arvind Kumar as (PW.22), Ct. Harpal as (PW.23), ASI 6 7 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Dheeraj Bhati as (PW.24) and Inspector Dinesh Sharma as (PW.25).
9. The brief testimonies of witnesses are as follows:
i).PW.1 is the duty officer and deposed that on 10.3.07 she recorded the FIR Ex.PW 1/A on the basis of Tahrir sent by Inspector Dinesh Sharma through Const. Gianender. FIR bears her signatures at point 'A"(OSR). She also stated that she made endorsement on the rukka vide Ex.PW 1/B.
ii)PW.2 proved the DD No. 61B dt. 15.7.07. He also produced the original DD register, copy of same is Ex.PW 2/A which is in his hand writing.
Iii)PW.3 deposed that he engaged a rickshaw belonging to deceased Brij Mohan for delivery of goods i.e glass pieces to ARC Transport Kashmiri Gate. On 9.3.07 he handed over the aforesaid goods to deceased (Brij Mohan) and also paid Rs.80/- as fair. He also gave him one slip on which he had written the mobile phone number 7 8 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC 9810334332 and also told him that in case of any problem deceased (Brij Mohan) can contact him on the said phone.
He further stated that at about 6 P.M he made enquiries from the transporter as to whether goods have been delivered or not to which he replied that goods were duly received by him. He further stated that on the next day a telephonic call from police station was received at his house and he was called at police station. On 10.3.07 Laxmi wife of deceased also came to his house and made enquiry about Brij Mohan/deceased (her husband). During his cross-examination he admitted that his statement was recorded on 10.3.07 at opposite side of Enginering college at about 11 a.m by IO/ Inspector Dinesh Sharma.
iv)PW4 is wife of the deceased who deposed that her husband was rickshaw puller and used to carry goods on order. On Friday i.e 9.3.07 he picked the goods plastic dana from one Jain having its office at Peerwali Gali for 8 9 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC further transportation. She further deposed that on 9.3.07 when he did not returned at her house, she contacted Mr. Jain and enquired about her husband to which he replied that her husband had already delivered the goods as per directions. She further stated that on 10.3.07 police reached at her house and informed her that dead body of her husband was recovered. One chain was also found lying near the dead body. A chit bearing telephone number of Sunil Jain was also found in his possession. On receipt of this information she went to the spot and identified the dead body of her husband vide memo Ex.PW 4/A bearing her signatures at point 'A'. She identified the photographs of her husband placed on record by the IO. Photographs are Ex.PW 4/P-1 to P4. She further stated that accused Mohd. Sultan @Guddu was known to her as he is residing in her neigjbourhood. Raju is her Jeth, his wife died about 15/16 years ago. She further stated that her Jeth Raju was residing separately since last four years and having illicit relations with one Rashida, (mother of accused Mohd. 9 10 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Sultan.) Husband of Rashida was in jail in a murder case. She further stated that quarrel had also taken place between Sultan, her Jeth and her husband. She also received the dead body of her husband vide memo Ex.PW 4/B bearing her thumb impression.
During cross-examination by Ld. Counsel for accused Mohd. Sultan, she stated that on 10.3.07 at about 8.30 P.M she went to police station New Usman Pur and lodged a missing report of her husband and thereafter police officials came to her house at about 9.30 a.m and informed that a dead body was lying near DDA Park. She along with her Jeth Raju went to the spot and identified the dead body of her husband. Her statement and statement of her Jeth was recorded. She denied that her husband was also having illicit relations with Rashida, mother of accused Sultan. She further stated that Guuddu @ Mohd. Sultan used to quarrel with her under the influence of liquor but he never extended threat to her. She further stated that prior to this incident he/(accused) was having 10 11 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC visiting terms with her family members and accused Guddu never extended threat upon her husband in her presence. She also stated that her husband was habitual of drinker and she was also working as casual labour. She also stated that police official told her that one Bengali was also arrested in this case and no name of Guddu was ever told to her by the police. She further stated that on 13.3.07 accused Guddu was brought to her house by the police and on that day at about 9.30 p.m she came to know that accused Guddu was arrested in the case of murder of her husband. She also stated that her statement was recorded by police on 13.3.07. Rest of her testimony is reiterated by her as submitted by her during her examination in chief.
v)PW5 identified the dead body of his brother deceased Brij Mohan on 11.3.07 in the Mortuary of GTB hospital vide his statement Ex.PW 5/A. He was further examined on 1.2.08 and deposed that accused Guddu was known to him being his neighbourer but he denied that there were 11 12 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC illicit relations between him and mother of accused Guddu. He also stated that no quarrel had taken place between him and his brother Brij Mohan prior to death of his brother and no threats were ever extended by accused Guddu to his brother.
After seeking permission from the court, Ld. Addl.PP cross-examined the witness and during his cross- examination he admitted that his wife died about 10-15 years ago and husband of Rashida was in jail in a case of murder case but he denied that he was having illicit relations with Rashida mother of accused Guddu. Therefore he confronted from his statement Ex.PW 5/B from portion A to A wherein it was so recorded.
During his cross-examination by Ld. Counsel for accused he denied that any quarrel had taken place between him, his deceased Brother Brij Mohan and accused on 8.3.07 and they had taken liquor at his house. Police official informed on 10.3.07 in the morning time that a dead body was lying near DDA park and he along with wife of 12 13 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC deceased reached there and identified the dead body of deceased Brij Mohan. Rest of his testimony is reiterated as submitted by him during his examination in chief.
vi)PW6 deposed that she was running a small shop (Khokha) of Biri cigarettes near Theka Desi Sharab, New Usman Pur. She knew nothing about this case and accused Sultan never purchased Namkeen water pouch from her shop. Police officials never brought accused to her shop. She cannot identify the accused at this stage also. She stated that she had not seen accused Sultan @ Guddu and deceased Brij Mohan while taking liquor in the rickshaw parking of Sudhir and while deposing she confronted from her statement Ex.PW 6/A from portion A to A and B to B wherein it was so recorded.
Vii)PW7 deposed that he was running a transport office at 1564, Kashmiri Gate Delhi. In the month of March 2007 some goods of Jain Motors Market Kashmiri Gate were 13 14 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC delivered at his office. He handed over the Bilty to the boy who delivered the goods and forwarding receipt was thrown by him. Thereafter some goods were brought by rickshaw at their office belonging to Arvind Jain From the office of Sudhir and he handed over the slip to rickshaw puller by writing his mobile number. He also identified the slip Ex.PW 7/A upon which he had written the mobile no. 9810334332 at point A and given the same to rickshaw puller. He further stated that rickshaw puller reached their office at about 6 p.m. Rest of his testimony is reiterated as submitted by him during his examination in chief. Viii)PW8 deposed that on 10.3.07 he was on patrolling duty and received a message through wireless that a dead body was lying near Enginerring college Zero Pusta, on receipt of information he reached there, Inspector Dinesh Sharma, Dal Chand and Const. Manvir were at the spot. Photographer was called. He further stated that on the direction of Inspector Dinesh Sharma, he wrote an 14 15 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC application for preservation of dead body for 72 hours. Const. Manvir removed the dead body to the Mortuary of GTB Hospital and he handed over the application to Const. Manvir and carbon copy of the same is Ex.PW 8/A bearing his signatures at point A. Rest of his testimony is reiterated as submitted by him during his examination in chief.
ix)PW9 deposed that on 15.3.07 he along with Inspector Dinesh Sharma and other police officials went to the court of Sh. Sanjeev Kumar MM KKD Delhi. IO moved an application for seeking permission to arrest and to interrogate the accused Mohd. Sultan @ Guddu and Shamim. After seeking permission, they were formally arrested vide memo Ex.PW9/A and Ex.PW 9/B. Their personal search memos are Ex.PW 9/C and Ex.PW 9/D bearing his signatures on each memo at point A. Accused Sultan was interrogated and he made disclosure statement ex.PW 9/E which was recorded in his presence bearing his signatures at point A. Accused Shafiq also made 15 16 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC disclosure statement Ex.PW 9/F wherein he disclosed that accused Sultan used to sell stolen rickshaw rehari and he had also sold one rickshaw to him which he can get recovered. Accused Sultan also confessed his guilt and he also disclosed that he can get recovered the clothes worn by him at the time of commission of offence from his house.
During his cross-examination he deposed that before 15.3.07 accused Sultan was not in his custody, however, accused were already in the custody of DIU u/sec. 41.1(a) Cr.P.C. Rest of his testimony is reiterated as submitted by him during his examination in chief.
x)PW10 deposed that the deceased Brij Mohan was well known to him as he used to ply his rickshaw on rent basis. Before 16.3.07 deceased Brij Mohan was not coming to his garage for making payment of the rent of his rickshaw. He went to the house of the deceased but he was not found there. On 16.3.07 he went to police station and police 16 17 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC official told him that Brij Mohan has been murdered. He had seen his rickshaw at police station and identified the same which he handed over to Brij Mohan. He further stated that rickshaw was not got recovered by the accused persons in his presence. Vol. he had seen the rickshaw in the police station. He was cross-examined by the Ld. Addl. PP after seeking permission from the court and during his cross-examination he denied that when he reached at police station accused Sultan and Shamim were taken to Kabari market New Seelam Pur and from where accused Shafiq got recovered his rickshaw from shop No. E- 13/A/222 Kabari Market Seelam Pur and he identified his rickshaw at the shop of accused Shafiq. While deposing so PW10 Mohd. Saleem confronted from his statement from portion A to A on Ex.PW 10/A. He identified his signatures on memo Ex.PW 10/B. vol. stated that he had signed the memo at police station and specifically denied that he signed the said memo at the time of recovery of cycle rickshaw. He identified his rickshaw Ex.P.X when 17 18 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC produced out side the court. He also stated that he had given a receipt of rickshaw to the police which was seized vide memo Ex.PW 10/C and the receipt is Ex.PY. He also deposed that frame number of rickshaw was mentioned in the receipt i.e 854736 and he also proved the photograph of the rickshaw as Ex.PZ.
During his cross-examination he reiterated his testimony as submitted by him during his examination in chief.
xi)PW11 deposed that in the year 2007 (date & month not known) it was Saturday when police officials took him to Pandoo Silla behind Usman PUr police station where a dead body of rickshaw puller was lying. Deceased was known to him as he used to visit at his tea shop at Gali No.21. He further deposed that he handed over his visiting card to rickshaw puller as he was asking him to purchase rickshaw/rehari. Police officials brought the said card which was recovered from the possession of deceased Brij Mohan and took him to the place of recovery of dead body. 18 19 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC He also stated that wife of Panditji also reached at the spot.
Xii)PW12 deposed that on 10.3.07 on receipt of information through Control Room he along with crime team member reached near Engineering College near DDA Park Usman Pur and saw a dead body was lying there. He further stated that one stone was also lying near the dead body. Const. Sunil Kumar took photographs of the dead body. He prepared crime report and handed over the same to the IO, the said report is Ex.PW 12/A. Xiii)PW 13 deposed that on 10.3.07 he joined the investigation of this case with IO/Inspector Dinesh Sharma and also went at the spot i.e Zero Pusta DDA Park New Usman Pur. He further stated that SI Dal Chand along with Ct. Manbir Singh were found present at the spot. A dead body was lying there and on search of the dead body one visiting card, one paper slip was found. On the visiting 19 20 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC card Girish Auto Kashmiri Gate and on the slip R-247 Gali No.20Braham Puri was written. IO sent him to the address at Braham Puri to call landlord Hasim. He identified the dead body of one Pandit ji. IO handed over the rukka to him for registration of the case accordingly he went to police station and got the FIR registered and handed over the copy of FIR and rukka to the IO. During his cross- examination he stated that one blood stained stone was also lying there and dead body was not covered with any cloth. Rest of his testimony is reiterated as submitted by him during his examination in chief.
Xiv)PW14 is hostile witness as he resiled from his statement allegedly recorded by the IO during investigation of this case. He specifically stated that neither accused Sultan @ Guddu nor Brij Mohan deceased were known to him. He never saw any of them and knew nothing about this case. However while deposing so he confronted from his statement Ex.PW 14/B. 20 21 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
xv)PW15 deposed that on 16.3.07 he along with Const. Raj Pal joined the investigation of this case with the IO. One Saleem had come to the police station with the IO and thereafter they along with Saleem had gone to the shop of Shafiq at B-13A/222 Kabari Market Seelam Pur. Accused Sultan was also taken at the spot. Accused Shafiq pointed out towards a rickshaw which was checked and number 945786 was graved on the frame of the rickshaw and make Neelam was also written on its handle. RSSZ 2006 Sajan was written on Phatta, two mobile numbers were also written on the said phatta. Owner of the rickshaw also identified the rickshaw which he had given to the deceased on rent. Accused Shafiq told him that deceased sold that rickshaw for Rs.400/-, said rickshaw was taken into possession vide memo Ex.PW 10/B in his presence bearing his signatures at point B. He further stated that both the accused were taken at the house of Omwati at Khajoor wali Gali Ghonda. Accused Guddu@ Sultan got 21 22 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC recovered one blood stained blue colour jeans, one cream colour shirt, one black colour jacket( blood stained) and all these clothes were sealed in a pullanda with the seal of DS and taken into possession in his presence. Accused got recovered these clothes while saying that these were the same clothes which he was wearing at the time of commission of offence. The sealed pullanda sealed with the seal of CFSL was opened, one jeans pant, shirt and jacket were taken out which he correctly identified as Ex.P.1,P2 and P3 respectively. He also identified the rickshaw Ex.PX when produced in the court premises. He also correctly identified both the accused persons present in the court.
During his cross-examination he stated that clothes were lying above the tin shed out side the room and some stone pieces were lying o the tin shed. During further cross- examination he reiterated his testimony as submitted by him during his examination in chief.
22 23 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Xvi)PW16 deposed that on 10.3.07 on receipt of copy of DD No. 3B at about 8 a.m he along with SI Dal Chand reached at Zero Pusta in front of Engineering College and saw a dead body of male was lying there. Inspector Dinesh Sharma also reached there, photographer and crime team was called, photographs were taken and on search of dead body one visiting card and slip were recovered and these were taken into possession. Haseen was called at the spot and he identified the dead body as of rickshaw pullar Brij Mohan. Smt. Laxmi, wife of the deceased also reached there and she identified the dead body. ASI Amrit Lal also reached there and handed over an application for seeking permission to preserve the dead body in the mortuary of GTB hospital, he took the dead body to GTB Hospital mortuary and deposited the same there. He further stated that on 11.3.07 post mortem was conducted and after conducting the postmortem doctor on duty handed over him a sealed box containing viscera, one sealed pullanda containing clothes of deceased, one 23 24 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC sealed envelope containing blood sample of deceased with sample seal of BG, which he handed over to the IO and Io seized the same vide seizure memo Ex. PW 16/A. He further deposed that so long as the dead body remained in his possession no body tampered the same. During his cross he reiterated his testimony as submitted by him during his examination in chief.
Xvii)PW17 deposed that on 16.3.07 he and constable Mahinder Singh joined the investigation of this case with Inspector Dinesh Sharma. On that day both the accused were present with the IO. One Saleem was also present there. They all went to Kabari Market New Seelam Pur. Accused Shafiq got recovered a rickshaw from inside his shop. Rickshaw was identified by its owner Saleem which he had given to Brij Mohan (deceased) on rent. Accused Shafiq told them that the said rickshaw was sold to him by Sultan for Rs.400/-, the same was take into possession vide memo Ex.pW10/B bearing his signatures at point C. 24 25 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Thereafter Saleem left he spot and they all went to Khajoor wali gali Ghonda with both the accused persons. Accuse Sultan got recovered, one blue colour jean, one cream colour shit and lack colour jacket with blood stained from out side his house, lying on the tin. Clothes were sealed in a pullanda and sealed with the seal of DS and taken into possession vide memo Ex.PW 15/A. Accused Sultan told them that he was wearing those clothes at the time of commission of crime and seal after use was given to Const. Mahinder. He identified jeans Ex.P.1, Shirt Ex.P.2 and Jacket Ex.P.3, these were got recovered by accused Sultan. He also identified rickshaw Ex.P.X. During his cross-examination by Ld. Counsel on behalf of Sultan @ Gudu he deposed that none of family member was present in the house of Sultan however, some children were playing there. Rest of his testimony is reiterated as submitted by him during his examination in chief. Xviii)PW 18 deposed that on 14.3.07 he along with ASI 25 26 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Dheeraj were on patrolling duty in the area and on receipt of an information ASI Dheeraj made equiries from Mohd. Sultan @ Guddu and Shafiq @ Shamim. On interrogation accused Mohd. Sultan made a disclosure statement regarding the commission of murder of one Brij Mohan and regarding selling of rickshaw to Shafiq @ Shamim. The disclosure statement of accused Mohd. Sultan is Ex.PW 18/A and the disclosure statement of accused Shafiq is Ex.PW 18/B. Accused Sultan also pointed out the place of incident i.e in front of Engineering college DDA park near zero pusta and pointing out memo is Ex.pW 18/C. He further stated that both the accused were arrested u/sec. 41.1(a) Cr.P.C and a callendra was prepared which is Ex.PW 18/D. All the memos bearing his signatures at point A. He also identified both the accused persons present in the court. Personal search and arrest memo of accused Mohd. Sultan are Ex.PW 18/E & F and of accused Shafiq @ Shamim are Ex.PW 18/G & H respectively. During his cross-examination he reiterated 26 27 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC his testimony as submitted by him during his examination in chief.
Xix)PW 19 deposed hat on 10.3.07 Inspector Dinesh Sharma, the Investigating officer of this case deposited five pullandas sealed with the seal of DS. IO also deposited the articles of personal search of deceased and he made entries in register No. 19 at srl. No.1140. He further deposed that IO deposited four sealed parcel with the seal of BG. He made entry in register No.19 at srl. No.1142. On 16.3.07 IO deposited one pullanda sealed with the seal of DS and one rickshaw, he made entry in this regard in register No. 19 at srl. No.1151. He further deposed that on 25.4.07 all the sealed parcel mentioned above were sent to CFSL Kolkatta through H.C Nepal vide R/CNo. 47/21. H.C Nepal handed over the receipt of copy of R/C to him. He further deposed that till the case property /sealed parcel remained in his possession, same were not tampered with. Photo copy of he aforesaid entries are Ex.PW 19/A, 19/B and 19/C respectively.
27 28 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC xx)PW20 deposed that on 25.4.07 MHC(M) handed over him the exhibits of this case with R/C no. 27/21/07 for depositing the same at CFSL Kolkatta. He had gone to Kolkatta and all the exhibits were deposited and he collected the receipt on the back of the R/C and handed over the same to MHC(M). He further stated that till the exhibits remained in his possession/custody no body tampered with it. Xxi)PW21 deposed that on 10.3.07 on receipt of an information vide DD No.3B he along with Const. Manbir reached at the spot i.e zero Pusta in front of Engineering college, and found one dead body of a male lying near footpath out side the DDA park. He also deposed that he noticed head injury and the blood was also coming out. Besides the dead body one heavy stone was also lying. In the mean time Inspector Dinesh Kumar along with Ct. Gianender reached there, Inspector called the photographer and crime team, wireless message was given to the senior police officials. Near the feet of the 28 29 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC dead body one steel chain was also lying, Inspector took the personal search of the deceased in whose shirt one slip, one visiting card was found and on the slip Girish Auto house 72, APS Jain Motor Market Kashmiri Gate 1025 dt. 9.3.07 and on visiting card the address i.e R-247 Gali No.20, Braham Puri and name of Haseen was written on it. Haseen was called at the spot and he identified the dead body as of one Pandit ji resident of Peerwali Gali Ghonda. Wife of deceased was also called at the spot and she also identified the dead body of her husband. Inspector prepared rukka and got the case registered through Ct.Gianender. Blood stained stone, steel chain, blood stained earth was seized by the IO. One slip, one visiting card and Rs.15/- were recovered from the personal search of the deceased, found in the pocket of the shirt which he was wearing were also seized by the IO vide memo Ex.PW 21/A bearing his signatures at point A. Seizure memo of stone, steel chain, blood with the help of cotton and blood stained earth and blood stained dried 29 30 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC sand were also taken into possession vide memo Ex.PW 21/B bearing his signatures at point A. All these exhibits were taken into different pullandas and sealed with the seal DS. He also identified the stone as Ex. 21/P1, steel type chain as Ex.21/P2, visiting card bearing phone no. 9313671578 and house No. R-247 street No. 20 near Umar Masjid Braham Puri, Seelam Pur Delhi Ex. 21/P3. Currency note of Rs.10/- and coin of Rs.5/- is Ex.21/P4, one slip on which phone no. 9810334332 was written is already Ex.PW7/A. During his cross- examination he reiterated his testimony as submitted by him during his examination in chief.
Xxii)PW22 is Dr. Arvind Kumar who identified the signature of Dr. Barkha Gupta who had conducted the postmortem of the deceased Brij Mohan s/oLate Sh Mahavir Pd. r/o Ghonda Delhi. He had seen the postmortem report No. 280/07 of the deceased and the said report was prepared by Dr. Barkha Gupta who has now left the services of the 30 31 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC hospital and her present whereabouts are not known to the hospital authority. He identified the signatures of Dr. Barkha Gupta as he had seen her while writing and signing the documents during official duties. The said postmortem report is Ex.PW 22/A bearing the signatures of Dr. Barkha Gupta on each page of the said report and the said report is running into four pages. As per postmortem report the deceased was brought by Inspector Dinesh Sharma with the alleged history of assault and found dead on 10.3.07 at about 7.58 a.m at zero pusta main road in front of Engineering college and the detailed external antemortem injuries are as follows:
a) Reddish abrasion 6.5 x 3.5 cm irregular in shape, present on right side of face adjoining the outer angle of eye situated
7.cm outer from midline, on outer and lower of this injury there is lacerated wound 2.0x0.5 cm bone deep vertically placed along with fracture of underlying maxillary bone.
b) Reddish abrasion 8.0 x 2.cm horizontally placed on right side of face extending from right angle of mouth up to right 31 32 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC angle of mandible along with closed fracture of underlying mandible on right side.
c) Lacerated wound assaulted with crushing of right ear 10.0x 7 cm bone deep surrounding the ear situated 7.cm outer from outer angle of right eye and 5.0 cm above right angle of mandible associated with depressed fracture of right temporal bone 2.5 x 2 cm.
d) Incised wound 2.5 x 08x 0.5 cm bone deep along with contusion and laceration of margins at few places situated antero posterior on right parietal region at level of parietal eminence 3.0cm outer from midline hair around wound are cut.
e) Incised wound 3.0x 1.0x0.5 bone deep along with contusion and laceration of margins at few places obliquely placed situated on left parietal area adjoining midline 4.0 cm below the line at the level of parietal eminence, hair around wound are cut.
f) Incised wound 3.0 x 0.8 x 0.5 bone deep along with contusion and laceration of margins at few places situated on left occipital region situated 4.0 cm outer from midline and 2.0 cm below occipital proptrueberance obliquely Placed. Hair around wound are cut.
g) Incised wound 2.5 x1.0 x 0.5 bone deep along with contusion and laceration of 32 33 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC margins at few places obliquely placed situated on left occipital region 2.0 cm outer from midline at the level of injury No.6. Hair around wound are cut.
h) Reddish abrasion 2.0x2 cm on middle of
right knee.
i) Reddish abrasion 2.0 x 1.5 cm on
middle of left knee.
j) Reddish abrasion 3.0 x 1.5cm on back
of left shoulder 7cm below shoulder top
and 10.cm outer from mid line.
k) Reddish abrasion 3.0x 2 cm on back of
left shoulder 3.0 cm below shoulder top
and 8 cm from mid line.
l) Reddish abrasion 5.0x6 cm on back of
right shoulder 4 cm below shoulder top
and 13.cm from mid line.
On internal examination following injuries were found:
HEAD AND NECK Scalp - Injury as mentioned injury no. 3 to 7, extravasation of blood all over the scalp.
Skull - Fracture of skull bones as shown in figure on the postmortem report Ex.PW 22/A Brain: Oedematious and congested subdomal hemorrhage all over the brain. 33 34 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Subarachnoid hemorrhage all over the place with patchy distribution hemorrhagic contusion of right frontal and temporal low laceration of right frontal lobe intra ventricular bleeding present.
CHEST:
Ribcage- NAD Lungs- Oedematous and congested.
Heart- NAD Abdomen and others:
Stomach- Empty, walls -NAD
Intenstive -Full of gases walls NAD
Liver- 1200 gram congested.
Spleen- 100gm, congested.
Kidneys- Rt. 100 gm Lt. 100 gm,
congested.
Urinary bladder- empty walls NAD
Pelvis- NAD
On perusal of the postmortem report it also appears that viscera preserved under seal of BG, blood in sodium flouride under salt were taken and all the clothes mentioned earlier and blood on guage were taken and sealed with the seal of BG.
Dr. Barkha also gave her opinion for cause of death as :
Time since death: About one and a half day, cause of death is shock due to antemortem head injury produced 34 35 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC by heavy cutting weapon and blunt force impact. Injury No. 4,5,6 and 7 are produced by heavy cutting weapon and independently sufficient to cause death in ordinary course of nature. Injury No. 1 and 3 are produced by blunt force impact and independently sufficient to cause death in ordinary course of nature.
xxiii)PW 23 is formal witness. He only brought the DD register pertaining to DD No. 3B dt. 10.3.07. The said DD is Ex.PW 23/A bearing his signatures at point A (OSR). Xxiv)PW24 deposed that on 14.3.07 on receipt of a secret information he along with Const. Bijender apprehended the accused Mohd. Sultan @ Guddu and Shafiq @ Shamim, they both were taken to DIU Cell office for interrogation and during the course of investigation they both made disclosure statements which were recorded by him.
Statement of Mohd. Sultan already Ex.PW 18/A and the disclosure statement of accused Shafiq already Ex.PW 18/B, bearing his signatures at points A. On the disclosure 35 36 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC statement they made a callendera u/sec. 41.1.(a) Cr.P.C which is Ex.PW 24/B. Both the accused were arrested vide their respective memos Ex.PW 18/E to Ex.PW 18/H. Spot was got identified by accused Mohd. Sultan vide memo Ex.PW 18/C. Both the accused persons were medically examined and sent to Lockup of P.S Seelam Pur. Brief facts of their disclosure statements were sent to IO concerned and on next day, accused were produced before the court concerned and copy of the callendera along with the documents were given to the IO which has already been exhibited. During his cross-examination he reiterated his testimony as submitted by him during his examination in chief.
Xxv)PW25 is the investigating officer of this case. He corroborated the testimonies of all the witnesses those have already been discussed. However, he deposed that on 10.3.07 at about 8 a.m duty officer informed him regarding the receipt of an information vide DD No.3B. On 36 37 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC receipt of this information, he along with constable Gianender reached at he spot i.e in front of Engineering college, Zero Pusta New Usman Pur. SI Dal Chand and Const. Manbir were already present there. A dead body of male person was lying at he spot. The blood stained stone, steel chain was lying there. Crime team was called at the spot, photographs were taken, personal search of the deceased was also taken, wherein one visiting card, one slip already discussed were recovered and seized vide memo Ex.PW 21/A. One Haseem was called at the spot on the basis of his address mentioned on the visiting card, he identified the dead body of deceased as of Brij Mohan. Const. Gianender was sent at the address of deceased and from there wife of deceased reached there and identified the dead body of her husband. Rukka Ex.PW 25/A was prepared, the case was got registered through Const. Gianender. Dead body was sent to GTB Hospital through Const. Manbir. Site plan was prepared, steel chain, blood stained stone and blood lifted from the spot, 37 38 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC blood stained earth, earth control were lifted from the spot by him. All these exhibits were separately sealed with the seal of DS and seal after use was given to Const. Gianender. Statement of witnesses were recorded, exhibits were deposited in the malkhana. He further deposed that on 11.3.07 postmortem was got conducted at GTB hospital mortuary and dead body was given to brother and wife of the deceased vide memo Ex.PW 21/B. He also recorded the statement of wife of deceased, Raju brother of the deceased who identified the dead body, same are Ex.PW 4/A and Ex.PW 5/A respectively. He also identified the slip on which Girish Auto is mentioned, which is Ex.PW 7/A. He further deposed that on 11.3.07 Const. Manbir produced three sealed pullandas duly sealed with the seal of BG along with sample seal of BG which were handed over by the doctor concerned, he seized the same vide memo Ex.PW 16/A. On 15.3.07 he received DD No. 61A regarding arrest of accused u/sec. 41.1(a) Cr.P.C The said DD is Ex.PW 2/B. 38 39 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC He further stated that he along with Const. Bachu reached at KKD and obtained the requisite documents of this case from ASI Dheeraj of DIU/NE. Accused persons made disclosure statement regarding commission of murder in the present case and they also pointed out the place of occurrence and also disclosed about selling of rickshaw to one Shafiq. After obtaining the permission from the court, accused were arrested vide memo Ex.PW 9/A to Ex.PW 9/F respectively and the rickshaw in question was recovered from Seelam Pur market at the instance of Shafiq. The said rickshaw was identified by its owner Saleem. He further stated that he along with other police officials went to Gali Peerwali, Ghonda and at the instance of accused Mohd. Sultan blood stained clothes were recovered from the tin shed nearby his residential room. Jean, shirt and jacket recovered and sealed with the seal of DS. He also deposited entire goods/case property in the Malkhan. He further deposed that on 25.4.07 he along with draftsman reached at the spot and prepared the rough 39 40 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC notes of the spot and the scale site plan at his instance. He also recorded the statement of SI Mukesh Jain. He further stated that all the exhibits were sent to CFSL office Kolkotta through H.C Nepal. One Saleem produced receipt of rickshaw same was taken into possession and seized by him, photographer produced the photographs same were placed in the file. He obtained the Postmortem report already Ex.PW 22/A and report of CFSL vide memo Ex.PW 25/D and Ex.PW 25/E. After recording the statement of witnesses, completion of investigation he presented the challan before the court of Ld. MM. He also identified all the exhibits which were recovered during the investigation, same are Ex.P.21/P1 to Ex.P. 21/P-4. He also identified the clothes i.e Jeans pant, Shirt and Jackets as Ex.P.1,2 and 3. He identified the rickshaw recovered during investigation and also both the accused present in the court. During cross-examination he reiterated his testimony as submitted by him during his examination in chief.
40 41 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
10.Thereafter no witness was left to be examined, therefore, PE was closed and case was fixed for examination of accused u/s 313 Cr.P.C.
11.During examination of accused Mohd. Sultan @ Guddu u/s 313 Cr.P.C he controverted all the incriminating evidence produced against him by the prosecution witnesses and submitted that he was innocent and falsely implicated in this case. He also submitted that no recovery of clothes was effected at his instance and the clothes does not belong to him. But he admitted that the deceased Brij Mohan, his brother Raju (PW.5) and PW.4 Smt. Laxmi(wife of the deceased) were well known to him being his neighbourer. He also admitted that his father was in jail in murder case. Rest of the contents as alleged by the witnesses with regard to the fact that brother of deceased was having illicit relations with his mother Ms. Rashida are totally denied. He also admitted the fact that on 14.3.07 he was arrested by the staff of DIU N/E vide DDNo. 61A but he denied that he had made any disclosure statement Ex.PW 18/A. He did not desire to lead defence evidence, therefore DE on his behalf was closed.
41 42 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
12. Accused Shafiq @ Shamim during his examination u/s 313 Cr.P.C he controverted all the allegations as alleged against him. However it is admitted that he was arrested by DIU NE Cell on 14.3.07 but he has not made any disclosure statement Ex.PW 18/B. He submitted that he was innocent and was falsely implicated in this case. He also did not desire to lead defence evidence, therefore DE on his behalf was closed. Thereafter DE was closed and case was fixed for final arguments.
13.I have heard the arguments on behalf of Ld. Addl. PP for the state and Ld. defence counsels on behalf of the accused persons.
14.ld. Counsel for accused persons submitted that before convicting the accused under any penal of law it is the duty of the prosecution to prove its case against the accused beyond reasonable doubt and in the present case no incriminating corroborative evidence is placed on record by the prosecution against the accused and requested for acquittal of the accused persons.
42 43 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
15.In support of his aforesaid contention it is submitted that initially the investigation was initiated only on the basis of statement of one Sudhir Kumar Mishra who allegedly made a statement before the IO that on 9.3.07 he had seen deceased Brij Mohan and Mohd.Sultan @ Guddu w.e.f 9 p.m to 11 p.m while taking liquor in the parking place of his rickshaws. Sudhir has already been examined as PW 14 and he specifically stated before the court that neither Mohd.Sultan @ Guddu nor deceased Brij Mohan were known to him and he had seen accused Mohd. Sultan for the first time in the court. He also stated that he had not seen Birj Mohan and accused Mohd. Sultan on 9.3.07 between 9 p.m to 11 p.m. During cross-examination by Ld. Addl. PP also he has not supported the prosecution version and confronted from his statement Ex.PW 14/A on the main points.
16.Second instance which is placed by the prosecution against the accused is that Ms. Laxmi (PW4) wife of the deceased Brij Mohan stated that accused Mohd. Sultan @ Guddu was known to her as he was her neighbourer. Raju is her Jeth and the wife of her Jeth died about Fifteen years ago and her Jeth Raju was having illicit relations with Rashida 43 44 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC mother of the accused Mohd. Sultan. Husband of Rashida/father of accused Mohd. Sultan was in jail in some murder case and some quarrel had taken place between Mohd. Sultan, his Jeth Raju and her husband. She also stated that her Jeth Raju was having illicit relations but Raju who was examined as PW5 in the court, had no where stated that he was having illicit relations with Rashida, mother of accused Mohd.Sultan. He also stated that no quarrel had taken place between him, his brother Brij Mohan/ deceased and accused Mohd.Sultan prior to incident. He has not supported the prosecution version and turned hostile on these points.
17.Third instance which is placed against the accused by the prosecution is statement of Smt. Sunita recorded by the IO but during examination before the court, she clearly stated that she knew nothing about this case and accused never purchased Namkeen/water pouch from her shop. She even failed to identify the accused present in the court. She also denied that on 9.3.07,at about 9 p.m she had seen deceased Brij Mohan and his companion Guddu @ Mohd. Sultan taking liquor at the rickshaw parking of one Sudhir Kumar Mishra.
44 45 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
18.Fourth incriminating fact which was recorded by the IO during investigation of this case is statement of one Mohd. Saleem in whose presence the cycle rickshaw was recovered at the instance of accused from Kabari market Seelam Pur. He has been examined as PW 10 and he had no where stated that rickshaw in question was recovered in his presence at the instance of accused Mohd. Sultan from the shop of co- accused Shafiq @ Shamim from Kabari Market Seelam Pur Delhi. He also stated that he identified his rickshaw only at the police station.
19.PW.1 is duty officer and she only recorded the FIR Ex.PW 1/A, PW.2 is again formal witness, he only brought the DD register dt. 15.3.07 and the copy of the same is Ex.PW 2/A.
20.PW.3 Sushil Jain only proved that he hired the rickshaw of deceased Brij Mohan for delivery of the goods to ARC Transport Kashmiri Gate, Delhi and on receipt of telephonic call from police station on the basis of the slip bearing his telephone number. He went to the police station. He also stated that wife of deceased Smt. Laxmi reached at his house on 10.3.07 enquired about her husband.
45 46 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
21.PW 5 is brother of the deceased Brij Mohan. He only identified the dead body of his brother vide memo Ex.PW 5/A.
22.PW7 is again formal witness. He only stated that he has been running a transport office at 1564 Church Road, Kashmiri Gate, Delhi and in the month of March 2007, some goods were brought to their office belonging to Arvind Jain by rickshaw pullar from the office of Sushil Jain. He handed over a slip to rickshaw pullar after writing the mobile number of Sushil Jain and in view of the aforesaid testimonies it has become crystal clear that the prosecution failed to prove its case beyond reasonable doubt and requested for acquittal of both the accused.
23.On the contrary Ld. Addl. PP for the state submitted that initially the case was registered on receipt of information vide DD No. 3B that a dead body of male was lying at zero Pushta main road in front of Engineering college. Said DD is duly proved vide Ex.PW 23/A and the endorsement made on the said DD i.e for registration of the case is Ex.PW 25/A. After registration of this case and during the course of initial enquiry of this 46 47 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC case and on the basis of slip taken out from the pocket of the shirt worn by the deceased and a visiting card bearing number of one Haseem (PW.11), dead body was identified as of Brij Mohan and this fact is duly proved by PW.11. Site plan was prepared and blood stained stone used for commission of the offence was taken in possession from the spot, blood stained earth and sample of earth were taken and sealed with the seal of DS and all these fact is also proved by the IO and other police officials. Statement of witnesses namely Sudhir Kumar Mishra(PW 14), Raju (PW5), Smt. Sunita (PW6) but they all have not supported the prosecution version hence turned hostile. Despite of the fact that PW 5, PW6 and PW 14 turned hostile although they all thrown the light to initiate the investigation of this case.
During the course of investigation accused was arrested by DIU N/E staff u/sec. 41.1(a) Cr.P.C and during their arrest they disclosed about the commission of murder of Brij Mohan/deceased. During interrogation by the IO, accused Sultan made disclosure statement that he can get recovered the blood stained clothes which he was wearing at the time of commission of murder of deceased Brij Mohan, from his residential 47 48 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC house at Gali Khajoor Wali, village Ghonda belonging to one Ms. Omwati and accordingly he got recovered the blood stained clothes lying on a tin shed in front of his house. He also disclosed that he had sold the rickshaw belonging to deceased Brij Mohan to one Shamim for Rs.400/- and can get recover the same from the shop B-13A/222 Kabari Market Seelam Pur and accordingly the said rickshaw was got recovered which was duly identified by Saleem/owner of the rickshaw.
24.It is further pleaded that present case is not based on the direct evidence but there are unbreakable chain of circumstances which is placed on record by the prosecution. In view of the disclosure statement and at the instance of accused Mohd. Sultan @ Guddu blood stained clothes were recovered which were sent to CFSL vide Ex. 9A, 9B and 9C and human blood was detected on Ex. 9B, shirt and 9C pant with belt allegedly worn by the accused at the time of commission of offence.
25.It is further pleaded that the cycle rickshaw which was in the possession of the deceased on the day of incident, was also got recovered at the instance of accused from the shop of Shamim i.e B-13A/222 Kabari 48 49 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC Market Seelam Pur. The blood stained stone Ex. P1 and the shirt marked 6A and pant marked 6B and the blood sample taken from the dead body of the deceased marked 7, all belonging to the deceased and the blood stained pant and shirt Ex.9B and 9C which were recovered at the instance of accused were analyzed and blood group 'A' was detected and all the exhibits clearly goes to show that the blood stained clothes which were discovered on the basis of disclosure statement, pant and shirt worn by the deceased, and the blood sample taken by the doctor at the time of conducting the postmortem and blood stained shirt which were recovered, all bearing the same group of blood which raises an irrebutable presumption of involvement of the accused in committing the murder of the deceased Brij Mohan. The cycle rickshaw which was in possession of accused was also recovered at the instance of accused and on the basis of his disclosure statement which further fortifies the circumstances of his involvement in commission of crime. The said report is duly exhibited as Ex.PW 25/E and the factum of recovery of cycle rickshaw is proved by PW 9 Ct. Bachchu Singh, PW10 Saleem, PW 15 H.C Mahender and PW 17 Ct. Raj Pal. Recovery of blood stained clothes is further proved by PW 15 vide memo Ex.PW 15/A, factum of 49 50 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC recording the disclosure statement is proved by PW 18 vide memo Ex.PW 18/B and C. Factum of arrest of both the accused is further proved by PW 18 and IO/PW 25. The factum of recovery of slip bearing the name of Girish Auto House 72, APS Jain motor Market, Kashmiri Gate 1025 dt. 9.3.07 and the visiting card bearing the mobile phone number 9313671578 and house No.R-247 street No. 20, near Umar Masjid Braham puri Seelam Pur and Rs.15/- is proved by PW 21 vide memo Ex.PW 21/A. External antemortem injuries mentioned at srl. No. 1 to 12 and the cause of death i.e shock due to antemortem head injury produced by heavy cutting weapon is duly proved by PW. 22 vide memo Ex.PW 22/A, who had identified the signatures of Dr. Barkha Gupta on the postmortem report. On perusal of the opinion part of postmortem report it is specifically opined that injury No. 4,5,6 and 7 are produced by heavy cutting weapon and independently sufficient to cause death in ordinary course of nature. It is further opined that injury No.1 and 3 are produced by blunt force impact and independently sufficient to cause death in ordinary of nature and all the injuries were antemortem and of recent origin which clearly goes to show that all the injuries are antemortem and death has taken only due to the injuries inflicted on the 50 51 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC person of deceased. The blood stained stone recovered from the spot , on analysis found to bear the blood stained of blood group 'A' which matches with the blood of deceased and clothes which were recovered from the possession of the accused at his instance also bearing the same blood group 'A'.
26.It is further pleaded that PW4 Smt. Laxmi, wife of deceased Brij Mohan clearly stated that her husband Brij Mohan was rickshaw puller and on 9.3.07 he had taken the goods of plastic Dana from one Jain for delivery as per directions. But when he did not returned, she contacted Mr. Jain and made enquiry about her husband. Thereafter Mr. Jain disclosed that goods were sent and her husband had delivered the goods at 4 P.M. She further deposed that on 10.3.07 police reached to her house and informed about the recovery of dead body of her husband. She went there i.e at Zero Pushta New Usman Pur and identified the dead body of her husband and identification memo is proved by her as Ex.PW 4/A. She also identified the photograph of her husband when shown to her. All the photographs are Ex.PW 4/B-1 to B-4. She further stated that Mohd.Sultan was known to her as he was his neighbourer. Her Jeth Raju 51 52 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC was having illicit relations with one Rashida, mother of the accused and before this incident a quarrel had taken place between accused Mohd. Sultan @ Guddu her Jeth Raju and her husband/deceased Brij Mohan. Due to these reasons accused was having grudge against hem which clearly establishes the motive of the accused to commit the crime.
27.The factum of receiving information DD No. 3B, registration of case and further investigation of this case are proved by all police officials, factum of reaching of crime team at the spot is proved by PW 12, factum of depositing of all exhibits and for sending the same to CFSL and report of CFSL Kolkota is proved by PW 19 and PW20. Factum of joining the investigation by PW 21 SI Dal Chand and Const. Harpal/PW3 who had reduced the information into writing. The factum of arrest of accused by DIU NE district is proved by PW 24 and the IO/ Inspector Dinesh Kumar corroborated the testimony of all the police officials and in view of the aforesaid unbreakable chain of circumstances proved by the prosecution, it is submitted that prosecution has succeeded in proving its case beyond reasonable doubt against the accused persons and requested for their conviction.
52 53 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC
28.After hearing the arguments on behalf of all the accused persons and on behalf of Ld. Addl. PP for the state and on the careful perusal of the evidence adduced by the prosecution , in the light of observations given by their Lordship in Catena of judgments on the issue of appreciation of circumstantial evidence the following facts are brought on record :
a) Initially the case was registered only on the basis of receiving an information about the fact that a dead body was lying at Zero Pushta in front of Engineering college, investigation was initiated and statement of Sudhir Kumar Mishra PW14, Ms.Sunita PW6 were recorded however, they both turned hostile but on perusal of their statements it appears that they both have seen the deceased Brij Mohan and accused Mohd. Sultan@ Guddu taking liquor in the rickshaw parking of PW 14 Sudhir Kumar. The viscera of deceased was taken vide 41/1,41/2 and 41/3 and was analyzed by Junior Scientific Officer CFSL Kolkatta wherein it is opined that exhibits were analyzed by physico-Chemical methods and 53 54 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC chromatographic techniques and no common poison including ethyl alcohol could be detected in the contents of each of the exhibits marked as 421/1, 421/2 and 421/3 respectively. Therefore, it is established that on 9.3.07 deceased Brij Mohan had not taken liquor however, it is not denied by PW4,wife of the deceased that deceased Brij Mohan used to take liquor.
b) PW4 wife of deceased Brij Mohan deposed that Raju(her jeth) was having illicit relation with Rashida, mother of the accused Mohd.Sultan @ Guddu and quarrel had taken place between her Jeth, her husband and accused Mohd.
Sultan on this account and he was having a grudge against her husband but PW 5 Raju(jeth of PW4) clearly stated that accused Guddu @ Mohd. Sultan was well known to him being his neighbourer and he denied having illicit relations between him and Rashida, mother of accused Mohd. Sultan. He also denied that quarrel had ever taken place between him, his brother BrijMohan and 54 55 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC accused Mohd. Sultan prior to death of his brother.
c) Police officials including the IO stated that cycle rickshaw which was in possession of deceased was recovered on the basis of disclosure statement made by accused and at his instance in presence of Mohd. Saleem owner of the rickshaw but in the court he stated that Brij Mohan deceased was well known to him as he used to take rickshaw on rent from him. He had seen the rickshaw at police station and identified the same but he clearly stated that rickshaw was not got recovered by the accused in his presence and he had only seen the same at the police station.
d) The blood stained clothes which were allegedly recovered at the instance of accused Mohd. Sultan @ Guddu from the Tin shed of his residential house where he was residing on rent in a house belonging to Om wati, but neither the owner of the house was made as a witness in 55 56 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC this case nor any public person was joined at the time of recovery of blood stained clothes.
e) It is further observed that the Jacket, Shirt and Pant were recovered and no blood was detected on the Jacket and only blood was detected on shirt and pant. However, Jacket was outer garment of the clothes worn by the accused and no blood was detected on the same as per report of CFSL.
29. In view of the evidence adduced by the prosecution and material collected/placed by the IO and in the absence of direct evidence/eye witnesses of the scene, evidence in the present case is to be appreciated in a manner in which circumstantial evidence is requested to be appreciated, therefore I placed my reliance on a decided case cited as Balu Sonba Sinde Vs. State of Maharashtra 2002 (4) RCR 95 SC wherein the following guidelines have been summed up :
1) There must be a chain of evidence so far complete as not to leave any reasonable ground for a 56 57 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
2) Circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.
3) There should be no missing links but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts.
4) On the availability of two inferences, the one in favour of the accused must be accepted.
5) It cannot be said that prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not 57 58 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC otherwise."
30.I also placed a reliance on a decided case cited as Swinder Singh Vs. State of Punjab AIR 1992 SC 669 wherein it is observed as under:
"It is no doubt true as we have pointed out earlier that there is a strong suspicion against the appellant, but as pointed out by this court in Pabitar Singh Vs. State of Bihar (1972) 3 SCC 354 :
(AIR 1972 SC 1899) although there may be grave suspicion against an accused person, still the prosecution is bound to establish facts from which the court can reasonably arrive at a conclusion that the offence was committed by the accused. It may be recalled that this court repeatedly observed that the suspicion however grave cannot take the place of legal proof."
31.I also placed reliance on a decided case cited as Shingara Singh Vs. State of Haryana and another 2004(2) RCR (Criminal) SC wherein it is observed as under :
"it is well settled that where two views are reasonably possible on the basis of evidence on 58 59 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC record, one that favours the accused shall be accepted."
32.I also placed reliance on a decided case cited as State of UP Vs. Ashok Kumar 1992(3) RCR 63 wherein it is observed as under:
"While appreciating circumstantial evidence the court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted."
33. In view of the facts and circumstances of this case and taking into consideration the evidence adduced by the prosecution and the observations given by their Lordships in the aforesaid cases I am of the considered view that prosecution could not succeeded in proving its case 59 60 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC beyond reasonable against the accused persons, therefore, accused Mohd. Sultan @ Guddu become entitled for giving him the benefit of doubt. Accordingly accused Mohd. Sultan @ Guddu is hereby acquitted of the charge for the offence punishable u/sec. 302/404 IPC.
34.No sufficient ingredients to prove the recovery of cycle rickshaw from the possession of accused Shamim @ Shafiq is proved and accordingly accused Shamim @ Shafiq is acquitted for the offence as alleged against him u/sec. 411 IPC. Since the accused Mohd. Sultan is in judicial custody, he be released forthwith, if not required in any other case. Accused Shamim @ Shafiq is on bail, his bail bond/surety bond cancelled, his surety stands discharged. File be consigned to Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court Delhi; Dt. 16th February 2010 60 61 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC 61 62 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC 62 63 ST VS MOHD. SULTAN ETC., FIR No. 86/07 PS NEW USMAN PUR , U/SEC. 302/404/411 IPC 63